Three Strikes and (Maybe) You’re Out: Coleman v. Tollefson

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

The adage borrowed from baseball, “three strikes and you’re out,” is used in law in different contexts. Many states have enacted “three-strikes” laws to punish repeat offenders: under these laws, a criminal receives a much longer sentence on his third conviction.[1] Another example is found in the Prison Litigation Reform Act (PLRA), under which inmates are prohibited from receiving in forma pauperis[2] status if they have brought three or more civil claims seeking in forma pauperis status that were dismissed.[3] Thus, in the baseball context, a PLRA dismissal is considered a “strike,” and the denial of pauper status is the “out.” However, the analogy is problematic in the legal context. Unlike in baseball, where the umpire’s decision to call a strike is unreviewable, a party in court can appeal the lower court’s decision. This hiccup in the baseball analogy is the question that was argued on February 24, 2015 in front of the Supreme Court in the case of Coleman-Bey v. Tollefson. The question was whether, under the “three strikes” provision of the PLRA, a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

In this case, the Sixth Circuit Court of Appeals issued a ruling contrary to the majority of its sister circuits. The Sixth Circuit held that a dismissal of a PLRA civil suit, while on appeal, counts as a third strike under the PLRA, and therefore precluded Coleman-Bey from receiving pauper status on his fourth PLRA claim during the pendency of the appeal of the third claim. The Sixth Circuit’s holding should be rejected by the Supreme Court because dismissals should only count as strikes under the PLRA when the plaintiff has exhausted or waived his appellate rights. This is the better, nondiscriminatory ruling, especially in light of the relatively small burden that pauper status places on the courts and Congress’s intent with the PLRA to penalize frivolous litigation, not freeze out meritorious claims.

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